Commissioner of Fair Trading v Kent Publishing Pty Ltd [2007] NSWSC 590

Commissioner of Fair Trading v Kent Publishing Pty Ltd [2007] NSWSC 590

The plaintiff established a strong prima facie case that Kent Publishing Pty Ltd contravened at least s 52 of the Trade Practices Act 1974 (Cth) by using telemarketing practices that misled small business operators into believing proposed listings or advertisements were renewals or confirmations of earlier agreements, and that the second defendant aided, abetted, counselled and procured those contraventions. The written-authorisation requirements in the interim orders had a sufficient nexus with the alleged s 52 contraventions because entry of customer details and demands for payment were triggers for obtaining payment through the misleading conduct. The balance of convenience favoured...

Jurisdiction
Australia
Judgment Date
08 June 2007
Procedural Posture
Application for Interim Injunctive Orders Concerning Alleged Misleading and Deceptive Conduct in Trade or Commerce / Interlocutory Notice of Motion Pending Final Determination
Outcome
Interim injunctive orders granted; defendants ordered to pay the plaintiff's costs of the motion.
Legal Topics
['interim Injunction' 'misleading or Deceptive Conduct' 'telemarketing' 'directory Advertising' 'written Authorisation for Payment Demands']
['consumer Law' 'trade Practices' 'fair Trading'] ['interim Injunction' 'misleading or Deceptive Conduct' 'telemarketing' 'directory Advertising' 'written Authorisation for Payment Demands']

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Procedural Posture

Application for Interim Injunctive Orders Concerning Alleged Misleading and Deceptive Conduct in Trade or Commerce / Interlocutory Notice of Motion Pending Final Determination

Legal Issues

  1. 1 ['Whether there was a serious issue to be tried that Kent Publishing Pty Ltd contravened Part V of the Trade Practices Act 1974 (Cth), including s 52, and that Dean James King aided, abetted, counselled or procured those contraventions.' 'Whether the interim injunctive orders had a sufficient nexus with the alleged contraventions of the Trade Practices Act 1974 (Cth).' 'Whether the balance of convenience favoured granting interim injunctive relief requiring written authorisation before entering listing details or seeking payment.' 'Whether the publications identified in the notice of motion were directories within the meaning of s 64(3) of the Trade Practices Act 1974 (Cth).']

Ratio Decidendi

The plaintiff established a strong prima facie case that Kent Publishing Pty Ltd contravened at least s 52 of the Trade Practices Act 1974 (Cth) by using telemarketing practices that misled small business operators into believing proposed listings or advertisements were renewals or confirmations of earlier agreements, and that the second defendant aided, abetted, counselled and procured those contraventions. The written-authorisation requirements in the interim orders had a sufficient nexus with the alleged s 52 contraventions because entry of customer details and demands for payment were triggers for obtaining payment through the misleading conduct. The balance of convenience favoured...

Court Disposition

Interim injunctive orders granted; defendants ordered to pay the plaintiff's costs of the motion.

Orders

  • ['Until further order, the first defendant and second defendant are restrained from entering details of any person, business or company in connection with advertising or listing in the specified publications, or any publication with a similar name, before receipt by the first defendant or second defendant of a...